Every court sits on a grant of power from somewhere. This chart follows that grant document by document, from the U.S. Constitution down to the courtroom on White Earth, and shows the authority each step actually cites. Where a step cites something that does not carry it, the connector is red and the defect is named.
Quotations are from the documents themselves; most are published in full on this site and linked at each step. Nothing below turns on whether a tribal court is a good idea — only on which article authorizes this one.
Art. I § 8 cl. 3 · Art. II § 2 cl. 2 · Art. VI cl. 2 · 1789
Three clauses touch Indian affairs. Congress may regulate Commerce with foreign
Nations, and among the several States, and with the Indian Tribes
. The President,
with two-thirds of the Senate, may make treaties. Treaties and federal statutes are
the supreme Law of the Land
.
Every power below this line is a power someone handed down. None of it is free-standing.
Cited authority: the Indian Commerce Clause and the treaty power.
Congress legislates for Indian affairs and the United States makes treaties with the Chippewa. The 1867 treaty that created the White Earth Reservation (16 Stat. 719) and the statutes that followed rest here.
Act of June 18, 1934, 48 Stat. 984, § 16 · as amended by Act of June 15, 1935, 49 Stat. 378
Section 16 gives a tribe the right to organize, to adopt a constitution and bylaws, and makes those effective when ratified by a majority of the adult members voting in an election called by the Secretary of the Interior and then approved by the Secretary.
Section 16 does not itself hand a tribal committee any particular power. It sets up the instrument — the constitution — through which the members decide what powers their officials will have.
Cited authority: IRA § 16 — the power to organize under a written constitution.
The Minnesota Chippewa Tribe organized under § 16 in 1936 and again in
1963. Article I § 1 of the current constitution says so in terms:
The Minnesota Chippewa Tribe is hereby organized under Section 16 of the Act of
June 18, 1934 (48 Stat. 984), as amended.
Ratified November 23, 1963 — 1,761 for, 1,295 against · approved by Assistant Secretary of the Interior John A. Carver, Jr., March 3, 1964
This is the document in which the people of the six reservations said what their
government may do. Article V lists nine powers of the Tribal Executive Committee.
Article VI lists six powers of each Reservation Business Committee. Fifteen powers:
legal counsel, tribal land and assets, budgets and funds, contracts and agreements,
licences and fees on non-members doing business, recognising community organisations,
and the power to delegate any of the foregoing authorities
.
There is no judiciary article. No court is created, no judicial power is vested, and
no power to establish a court appears on either list. The word court occurs
exactly once in the whole constitution — Article X § 2(d), removing an official for
conviction of a felony in any county, State or Federal court
.
Article XII sets the only route to a new power: a majority of qualified voters at an
election called by the Secretary of the Interior with at least 30 percent turnout, and
no amendment shall be effective until approved by the Secretary of the Interior.
Cited authority: Articles V and VI, the enumerated powers.
Everything the committees do that appears on those two lists is carried by this document. The question is what happens to everything else.
Courts over the enumerated subjects. The Interior Solicitor accepted these
in 1986: courts over hunting and fishing rights are funded because Article V,
§ 1(f) and Article VI, § 1(c) authorize the Tribal Executive Committee and the
reservation business committees respectively to administer tribal assets
, and
regulation of reservation business is authorized by Article V, § 1(g) and
Article VI, § 1(d)
.
Conservation, resource and business matters sit on real articles. This branch holds.
A court of general jurisdiction — custody of children, crimes, torts, contracts, probate, commitment. None of that is on either list.
Article XII was available: amend the constitution and add the power. It was not used. What follows in red is the route taken instead.
Cited authority: the Preamble (maintain and establish justice for our Tribe
) and Article I § 3 (to preserve and maintain justice for its members
).
The Interior Department had already answered this. On June 10, 1980 the
Twin Cities Field Solicitor concluded that the constitution does not delegate power to
authorize tribal courts to decide child custody, and that the Tribe would have to amend
it first. Reviewing that advice, the Associate Solicitor concluded that the intent of
the constitution was to grant powers through Articles V and VI rather than through
Article I or the Preamble.
A preamble states purpose; Articles V and VI grant power. Reading the
purpose clause as a power would, in the Solicitor's words, make unnecessary the
detailed listing of specific authorities
that follows it.
Tribal Executive Committee, Grand Portage, October 22–23, 1980 · 11 for, 0 against, each
Four months after the Field Solicitor's opinion, the Committee issued two interpretations of its own constitution.
No. 1-80 declares that the Committee possesses and exercises quasi-judicial
powers
and that its written opinions shall be conclusive and final as to the
meaning and interpretation of The Minnesota Chippewa Tribe's Constitution and the powers
contained therein
— and shall be binding upon any tribal court system established
by tribal ordinance.
No. 2-80 holds that the Committee may create a court system by ordinance,
because the purposes in the Preamble and Article I § 3 would be meaningless if
interpreted to mean the implementation of these purposes was limited only to the
authorities as set forth in Article V and VI of the Constitution.
Cited authority: a quasi-judicial
power the Committee attributes to itself. No article is named — because none exists.
Articles V and VI contain no interpretive or judicial power, and Article XII gives the last word on the constitution's meaning to the voters and the Secretary, not to the Committee. Interpretation 1-80 is the Committee ruling on the extent of its own authority, and 2-80 is the ruling it then made.
In 1981 the Committee went further. Interpretation No. 4-81 states that
it is the only proper body to interpret the Constitution of the Minnesota Chippewa
Tribe and that the United States, through its courts, solicitors, or employees, lacks
the authority or jurisdiction to determine the meaning
of it. The 1986 Solicitor
answered that the Department must exercise its own judgment
, and that the one
case relied on for the contrary view overstated the law
.
Tribal Executive Committee, Minneapolis, April 29–30, 1985 · 6 for, 3 against
Section 100.01: The Judicial Power of the Tribe is vested in the Minnesota Chippewa
Tribal Court and such other courts, judicial officers and commissioners with jurisdiction
inferior to the Tribal Court as the Tribal Executive Committee may establish.
The recitals cite the Preamble, Article I § 3, Article XIII (rights of members) and
inherent sovereign power
. Articles V and VI — the articles that actually grant
powers — are not cited anywhere in the ordinance.
Section 1000.01 then withholds from the new court the one power that would let it test
any of this: the Court shall not be empowered to interpret the Constitution of The
Minnesota Chippewa Tribe
; such questions are certified forthwith to the Tribal
Executive Committee
and the appeal is stayed.
Cited authority: Interpretation 2-80, the Preamble, Article I § 3, Article XIII, and inherent sovereignty.
Article XIII is a limitation on the governing body — it guarantees members
equal protection and due process. A guarantee against the government is not a grant of
power to it. Article V § 1(i) permits the Committee to delegate any of the foregoing
authorities
; judicial power is not among the foregoing authorities, so there was
nothing of that kind to delegate.
The vote was 6 of the Committee's 12 members, at a committee meeting. Article XII requires an election of the people called by the Secretary, 30 percent turnout, and Secretarial approval. No such election was held. The constitution has been amended four times since 1963 — twice in 1972, twice in 2006 — all in Articles III and IV, on elections and terms of office. The word court still appears once.
Associate Solicitor, Division of Indian Affairs (Tim Vollmann) to Assistant Secretary — Indian Affairs, July 31, 1986
Asked by the Fond du Lac Reservation Business Committee to reverse the 1980 opinion,
the Solicitor reaffirmed it: the Constitution of the Minnesota Chippewa Tribe
must be amended before the Tribal Executive Committee or any of the Tribe's reservation
business committees may authorize a tribal court to adjudicate child custody matters.
On the Committee's claim to the last word: the Department must exercise its own
judgment.
On funding: courts over hunting, fishing and reservation business are
supported, because those powers are on the lists. On the Indian Child Welfare Act:
25 U.S.C. § 1911 does not … authorize tribal officials to adjudicate such matters if
those officials have not been delegated such authority by the tribal membership in the
tribal constitution.
The reason given is not hostility to tribal courts. It is that
the tribal members have not decided to empower the tribal government to decide who
should have custody of their children
— and that the decision belongs to them.
Cited authority for continuing: none was issued. The ordinance stayed in force; the constitution was not amended.
Under 25 C.F.R. § 13.12(a)(2) the Assistant Secretary may approve an ICWA reassumption petition only if the tribal constitution authorizes the governing body to exercise jurisdiction over Indian child custody. White Earth's petition was refused on that ground. The courts continued to sit.
Enacted by the White Earth Tribal Council (the Reservation Business Committee under Article II of the MCT Constitution)
Chapter I § 1: There is hereby established the White Earth Band of Chippewa Tribal
Court.
The section names no enabling authority — not an article of the MCT
Constitution, not Ordinance 15, not a band charter. It supersedes any Code or Ordinance
of the Band that previously established or otherwise organized a judicial body.
Chapter II § 1 then claims jurisdiction over all actions under band codes; over
all persons whose actions involve or affect the White Earth Band of Chippewa or its
members
, members and non-members alike; all civil causes at common law; and criminal
jurisdiction over all persons who violate any Band codes, laws or ordinances
within
the reservation.
And § 1(i): The Court shall have jurisdiction to interpret all provisions of the
Minnesota Chippewa Tribal Constitution and all other organic documents which pertain to
the governing authority of the White Earth Band of Chippewa.
Cited authority: the Judicial Code cites none for the court's creation.
Article VI lists six powers of a Reservation Business Committee. Creating
a court is not one of them, and neither is enacting a criminal code. The only ordinance
power in Article VI § 1(d) is to levy licenses or fees on non-members or non-tribal
organizations doing business
— subject to review by the Secretary of the Interior.
Chapter II § 1(i) takes for the band court the power to interpret the MCT
Constitution. Ordinance 15 § 1000.01 — the ordinance that created the tribal court system
in the first place — says that court shall not be empowered to interpret
that
constitution. A subordinate body cannot grant itself an authority its own source
document withholds.
The claim of criminal jurisdiction over all persons
also runs
against Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), which holds that
tribes have no criminal jurisdiction over non-Indians — the same case the 1986 Solicitor
cites at 196 n.7.
A judge appointed by the council, applying a code the council wrote, in a court the council created, under a constitution that lists fifteen powers and does not list this one — and with no forum empowered to hear the objection, because the ordinance sends constitutional questions back to the committee whose power is being questioned.
Interpretation 2-80 builds the court on the Preamble and Article I § 3. Interior:
the constitution grants powers through Articles V and VI rather than through Article I
or the Preamble.
Interpretation 1-80 declares its readings conclusive and final
and binding on any
tribal court; 4-81 denies the United States any role. No article confers an interpretive
power on the Committee.
Ordinance 15 § 100.01 vests the Judicial Power of the Tribe
on a 6–3 committee
vote. Article XII requires a Secretarial election, 30 percent turnout and Secretarial
approval. The people never voted on it.
The 1986 Solicitor reaffirmed that the constitution must be amended before
the
committees may authorize such a court. Four amendments have passed since; none touched
this.
Judicial Code ch. II § 1(i) claims jurisdiction to interpret the MCT Constitution.
Ordinance 15 § 1000.01 says the court shall not be empowered
to do that.
One thing, and it is written into the document already. Article XII: an election called by the Secretary of the Interior, a majority of qualified voters with at least 30 percent turnout, and the Secretary's approval — adding a judiciary article that vests judicial power, defines its jurisdiction, and says who may interpret the constitution.
That is the step the Field Solicitor asked for in 1980 and the Solicitor of the Department of the Interior asked for again in 1986. It has never been put to the people. Until it is, every judgment below rests on a preamble.
The members of the Tribal Executive Committee take an oath, in Article III of the Bylaws,
to preserve, support and protect the Constitution of the United States and the
Constitution of the Minnesota Chippewa Tribe
. Nothing here asks for less than that oath
already promises.
conclusive and final(Oct. 22–23, 1980, 11–0)